Gopal Sen vs State of M.P.

Hon''ble Shri Pritinker Diwaker, J.—As these three appeals arise out of the same judgment and order dated 16.7.1996 passed by Additional Sessions Judge, Raipur in Sessions Trial No, 45/1996 convicting the accused/appellants Gopal and Kanhaiya in Cr. A. 1222/1996 and Cr. A. No. 1326/1996 under Sections 342 and 376(2)(g) IPC and sentencing each of them to undergo rigorous imprisonment for one year u/s 342 and 10 years u/s 376(2)(g) IPC; and convicting accused/appellant Sadhani Bai in Cr. A. No. 2184/1996 u/s 342, 366 and 376(2)(g) IPC and sentencing her to undergo rigorous imprisonment for 1 year u/s 342, 5 years u/s 366 and 10 yearsf 376(2)(g) IPC, they are disposed of by this common judgment. Facts of the case in brief are that on 30.11.1995 FIR (Ex. P-1) was lodged by the prosecutrix (PW-1) aged about 17 years alleging that she was residing in her house along with her father Manglu and that her marriage was solemnized about 5 years prior thereto but till that date she did not go to her matrimonial house. On 27.11.1995 at about 9 p.m. when she was going to answer the call of nature, accused Sadhani Bai alias Kachara Bai met her and in spite of her protest dragged her to her house by catching hold of her hand where accused Gopal and Kanahiya were already present. Accused Sadhani Bai asked Kanahiya and Gopal to ravish and kill her. Thereafter, said Sadhani Bai came out and bolted the door from outside. Inside the house, accused Kanahiya and Gopal gagged her mouth, threw her on the ground and after upturning her sari and petticoat committed forcible sexual intercourse with her. Though she tried to raise an alarm, she failed to do so as her mouth was gagged and that after commission of the offence by accused Kanahiya, it was repeated by accused Gopal. It is alleged that at that time they were talking to each other that they would ravish her until she died and the incident of rape went on till 3 a.m. in which both the accused/appellants had subjected her to rape four times each. It is alleged that on account of the act of the accused persons, she felt pain and became unconscious and then they had left her thinking that she would not survive. After regaining consciousness when she saw, accused Sadhani Bai was dragging her out of the room threatening her that if she disclosed the incident to anyone, she would be subjected to the same act again. It is alleged that somehow she reached her house and again became unconscious. On 30.11.1995 feeling a little better, she disclosed the incident to Biru Bai Sahu, Phool Bai and her father Manglu (PW-2) and then after being consoled by the Sarpanch, the report was lodged by her. Based on this report, offences under Sections 342, 376, 307 and 34 IPC were registered against the accused persons. Prosecutrix was medically examined on 2.12.1995 Dr. (Smt.) N. Mukherjee (PW-5) who gave her report Ex. P-7. After investigation the charge sheet was filed by the police on 14.12.1995 for the offences under Sections 376(2)(g), 307, 342, 366 and 34 IPC. Court below framed the charges against accused Gopal and Kanahiya under Sections 342, 376(2)(g) and 307 and against accused Sadhani Bai under Sections 342, 366, 376(2)(g) and 307 IPC.

In support of its case, prosecution has examined 10 witnesses. Statements of the accused/appellants were also recorded u/s 313 of the Code of Criminal Procedure in which they denied the charge levelled against them and pleaded their innocence and false implication in the case.

After hearing the parties, the Court below has acquitted all the accused/appellants of the charge u/s 307 IPC but convicted and sentenced them as mentioned in paragraph No. 1 of this judgment.

Counsel for the accused/appellant submits that a very improbable story has been put forth by the prosecution and that the accused/appellants have been implicated in a false case at the instance of one Dande who was Sarpanch of the village against whom accused Gopal had contested the Panchayat election. They submit that there is three days'' delay in lodging the report which has not been satisfactorily explained by the prosecution. According to them, medical and FSL report also do not support the case of the prosecution. They submit that father of the prosecutrix namely Manglu (PW-2) has also not supported the case of the prosecution and has been declared hostile. They further submit that Court statement of the prosecutrix, FIR and her case diary statement do not tally with each other. They submit that the prosecutrix has categorically stated in her Court statement that she did not lodge the report of her own and it was lodged as was told by said Dande. They further submit that while being subjected to rape the prosecutrix did not make any effort to come out of the clutches of the accused persons or even cry for help, though she herself has admitted that in the adjoining room son and daughter-in-law of accused Sadhani Bai were present and even the door between two rooms was open. They submit that statement of Biru Bai (PW-6) is contrary to that of the prosecutrix so far as it relates to the manner in which she was subjected to rape by the accused persons. They further submit that Biru Bai (PW-6) has admitted that there was political rivallary between two groups and it is Dande who was instrumental in lodging the report against them.

On the other hand, counsel for the respondent/State supports the judgment impugned and submits that the prosecutrix being a rustic villager, minor contradictions and omissions in her statement if any, have to be ignored. He submits that the defence has not been able to bring on record anything to show as to why the accused/appellants have been falsely implicated in the case. He submits that even if father of the prosecutrix has not supported the case of the prosecution and turned hostile, it does not make any difference because the statement of the prosecutrix itself is quite sufficient on the basis of which conviction of the accused/appellants can be maintained. He further submits that to some extent the statement of the prosecutrix has been duly corroborated by Hatiyarin Bai (PW-8) - the landlady of the prosecutrix. In respect of delay, State counsel submits that the manner in which the prosecutrix was ravished making her physical and mental condition a pathetic one and immediately after she regained consciousness, the report was lodged. According to the State counsel, version of the prosecutrix is duly supported by her medical report Ex. P-7.

Heard counsel for the parties and perused the material available on record.

Prosecutrix (PW-1) has stated in her evidence that she knew the accused/appellants who were residents of her village. On the date of incident at about 9 p.m. when she had gone to answer the call of nature, accused Sadhani Bai dragged her to her house where accused/appellants Kanahiya and Gopal were already present, and asked them to ravish her. Sadhani Bai also threatened her not to raise an alarm or else she would be cut to pieces and thrown in the railway track. Then after being ravished by accused/appellants Kanahiya and Gopal she was thrown out of the house. According to this witness, after reaching home she became unconscious and regained consciousness 4-5 days thereafter and that her clothes were drenched with blood. On being asked as to what had happened to her, she disclosed the incident to her neighbours but she was not aware as to who had lodged the report Ex. P-1 but admitted her signature on that. On the date of incident, accused Sadhani Bai is stated to have asked this witness to consume liquor but she had refused for the same. She has stated that in her house, her father who worked as porter and younger sister Sevti Bai were also residing. The house of accused Sadhani Bai was about 700 ft. away from her house and in between the two, houses of Manbai, Kadam, Munni, Sarpanch and Sakun were also there. In paragraph 11, this witness has stated that beforehand she did not inform accused Sadhani Bai that she would go towards her house to answer the call of nature. According to her, she had not taken her younger sister and for that she could not tell any reason. This witness has stated that she was not aware that accused Gopal was the leader of Labour Union. She has also expressed her ignorance about there being any dispute between Sarpanch and accused Gopal. She has admitted that one Dande was the Sarpanch of her village. According to her, she might have taken 2-3 minutes in reaching the house of accused Sadhani Bai and that nobody had seen her while going there. House of accused Sadhani Bai is stated to situate beside a road where her son and daughter-in-law were also residing. According to her, six years prior to the date of recording of her evidence, her marriage was solemnized but she never visited the house of her husband. She has however denied that due to her nature or habit she was not taken by her husband. According to her, while making an effort to get rid of accused Sadhani Bai, her bangles were broken as a result of which she had sustained bleeding injury in her hand. After taking her in the room, accused Sadhani Bai came out and bolted the door from outside. On being asked whether at the time of commission of rape accused Sadhani Bai was sitting nearby or came out of the room after leaving her inside, this witness has stated that after leaving her inside the room, she (Sadhani Bai) had come out and bolted the door. She has admitted that she did not raise any cry for opening the door nor did she knock or pull it. This witness has further admitted that she did not make any effort to open the door or call the son and daughter-in-law of accused Sadhani Bai and though the door between the room in question and the one where son and daughter-in-law of Sadhani Bai were living was open yet she did not go there. Sadhani Bai, according to this witness, had turned back at 3 a.m. and 2-3 minutes after she (Sadhani Bai) left the room, she (prosecutrix) became unconscious. After regaining consciousness she somehow reached her house and on being knocked the door was opened by her younger sister. According to her, at that time her father was sleeping in the house but she did not disclose the incident to him or her sister. This witness has further stated that the report was not lodged by her and the police had forcefully taken her thumb impression thereon. However, she has denied that she was not subjected to rape by accused Gopal and Kanahiya. She has stated that though Dande was not her relative, being Sarpanch he had accompanied her to the Court twice for giving statement. Though she has expressed her ignorance about there being a dispute between Dande, Gopal and Kanhaiya, it has been admitted by her that she was giving the statement as was told by Dande. According to her, she did not know Sunil but knew Dasru son of Sadhani Bai. She has denied that on her being caught in compromising position with Sunil, he was taking her to police station to which she had refused. On the date of incident, according to this witness, some Ramayan recital was going on at Ashok Nagar, however, she has denied that from that place her house was visible. She has denied that accused Sadhani Bai had gone to attend said Ramayan function. According to her, she was not aware that Sadhani Bai had reached home after the said function was over, in paragraph No. 24, she has stated that she was not aware as to the things recorded in the report and that her statement was recorded by the police at the instance of Dande. She has admitted that accused Sadhani Bai had threatened her of being cut into pieces and thrown at the railway track if she tried to raise an alarm and that if the same is not recorded in her statement, she could not tell the reason for that. She had also disclosed to the police about her becoming unconscious, regaining the consciousness after 3-4 days and her clothes being changed by someone but if all these things are missing in her statement she could not tell the reason for that. The fact that her clothes got drenched with blood and that she rejected the offer of Sadhani Bai of consuming liquor was also disclosed to the police but she could not tell the reason if the same is not mentioned in her statement. According to this witness, she was not aware about the existence of enmity between Sadhani Bai and Dande. She has also expressed her ignorance about the fact that accused Sadhani Bai had opposed Dande in the election of Sarpanch. She has however denied that at the instance of Dande she had disclosed the name of accused Sadhani to the police. She has denied that in the police station the report was lodged by Dande or at his instance she had disclosed the names of accused persons. Then she has stated that it is correct to say that name of Sadhani Bai was got written by Dande. She has denied that she has given the statement as was told by Dande.

Manglu (PW-2)-father of the prosecutrix has been declared hostile. He however has stated that on the date of incident when he returned home from his work place, he asked his younger daughter Sevti Bai about the prosecutrix and she told him that she had gone to answer the call of nature. According to him, the prosecutrix returned home at 3.00 a.m. and on being enquired, she told him that she had gone for watching video. Thereafter she went to sleep and did not tell anything about the act of the accused/appellants. On the 3rd day of the incident, he came to know that the prosecutrix was subjected to rape by accused/appellants namely Gopal and Kanhaiya and then the report was lodged. Kunjlal (PW-3) is the witness to seizure of certain articles made under Ex. P-3, 4 & 5. Phool Bai (PW-4) has not supported the case of the prosecution and has been declared hostile. Dr (Smt) N. Mukherjee (PW-5) is the witness who medically examined the prosecutrix and gave her report Ex. P-7 opining that she noticed swelling on her private part, blood was there which could be because of sexual intercourse. She went on opining that two fingers easily entered the vagina of the prosecutrix and the blood noticed on her private part could be because of menstrual cycle. Biru Bai (PW-6) has stated that prosecutrix was residing in her colony and on 2nd/3rd day of the incident, she (prosecutrix) informed her that on being called by accused Sadhani Bai, she went to her house where accused/appellants Gopal and Kanhaiya were consuming liquor. According to this witness, in the house of Sadhani Bai, after being held by accused Kanhaiya, she was made to consume liquor by accused Gopal and thereafter, she was subjected to rape first by Gopal and then by Kanhaiya. This witness is also stated to have been informed by the prosecutrix about the bleeding from her private part. According to her, the prosecutrix had already lodged the report before the incident of rape was disclosed to her. She had gone to the house of the prosecutrix to enquire about the incident as she was already told about the same by one Dehrin Bai. According to this witness, accused Sadhani Bai is also known as Kachara Bai and that she knew the accused/appellants Gopal for last about 5 years thereto and accused/appellants Kanahiya and Sadhani Bai for last 7-8 years thereto. In cross-examination, she has stated that she used to work in some B.K. Hygene Company as labourer and that in all the industrial centers of the area there were labour unions and of one of such unions she was also a member. According to her, the Chhattisgarh Mukti Morcha Sangh was a very revolutionary and most powerful organisation and the said organisation treats other ones to be in collusion with the owners. This witness has stated that accused Gopal was not a member of Chhattisgarh Mukti Morcha and he as well as accused Kanahiya run some other union and the relations between these two unions were not cordial over the demand of labourers. According to this witness, one Dande was the Sarpanch of village Gogaon and over the demand of labourers the tension prevailed between the two unions. There are certain contradictions and omissions in paragraphs 8 and 9 of her evidence if compared to her case diary statement. In paragraph No. 10 this witness has stated that there were four rooms in the house of accused Sadhani Bai where her son daughter-in-law and sisters were also residing. She has denied that at the instance of Dande she was giving a false statement. According to her, she was not aware of the fact that in the house of one Punni Bai Ramayan function was going on or that at the time of incident accused Sadhani Bai was in the said Ramayan function. According to this witness, after contesting the election Dande had become Sarpanch and accused Gopal was his opponent. S.K. Dwivedi (PW-7) is the witness who recorded FIR Ex. P-1. Hatiyarin Bai (PW-8) has stated that she did not know accused Sadhani Bai and the prosecutrix. She had gone to the house of prosecutrix along with Biru Bai and at that time she was sleeping on the cot. On being asked, the prosecutrix informed her that being sick she did not to go for work and that accused/appellants Gopal and Kanahiya had committed rape on her. Shankar Chandrakar (PW-9) is the witness who assisted in the investigation by making seizure of certain articles vide Ex. P-2 to P-5. He also recorded case diary statement of one Phool Bai vide Ex. P-6. Mithlesh Pandey (PW-10) is the Patwari who prepared spot map Ex. P-6.

In the record of the Court below an unexhibited FSL report dated 8.12.1995 is there according to which in sari, petticoat and vaginal slides of the prosecutrix and underwear of accused/appellants Gopal and Kanahiya, presence of spermatozoa was not confirmed but blood stains were found in sari, petticoat and slides of the prosecutrix and underwear of accused Kanahiya.

Minute examination of the evidence available on record particularly that of the prosecutrix makes it clear that in the FIR she has stated that she was subjected to rape four times by two accused persons each whereas in the Court statement she has simply stated that she was raped by them. Further in paragraph No. 5 of her Court statement she has categorically stated that she did not lodge the report is not aware as to by whom it was lodged. In paragraph 24 she has stated that she was not aware as to what was mentioned in the FIR and that her statement was recorded by the police as was told by Dande. It has also been stated by some of the witnesses that Dande became Sarpanch after defeating accused Gopal and in this view of the matter possibility of false implication of the accused/appellants cannot be ruled out. Though in the medical report the doctor examining the prosecutrix has found swelling in her private part, in the cross-examination she has clarified that blood present in her private part could be because of menstruation cycle also and that she could not give any definite opinion regarding rape. The doctor medically examining the prosecutrix did not find any external injury and has stated that if a girl is subjected to rape, possibility of injury is there. Biru Bai (PW-6) has stated that she was informed by the prosecutrix that accused Gopal and Kanahiya consumed liquor and also made her do the same whereas the prosecutrix has not stated anything like that. Further, the witness (PW-6) has admitted the fact that accused Gopal had contested election against Dande though was defeated. According to the prosecutrix, she did not make any effort to open the door or call the son and daughter-in-law of accused Sadhani Bai and though the door between the room in question and the one where son and daughter-in-law of Sadhani Bai were living was open yet she did not go there. Sadhani Bai, according to this witness, had turned back at 3 a.m. and 2-3 minutes after she (Sadhani Bai) left the room, she (prosecutrix) became unconscious. According to her, number of houses were there near the house of accused Sadhani Bai but still she did not make any effort to come out from the clutches of accused/appellants. According to Manglu (PW-2), the prosecutrix returned home at 3.00 a.m. and on being enquired, she told him that she had gone for watching video True it is that in a case of rape solitary evidence of the prosecutrix is sufficient to convict an accused if the same is absolutely trustworthy, unblemished, of sterling quality, without any shortcoming and thereby inspires full confidence of the Court. Unfortunately, this is not the position in the case in hand. Evidence of the prosecutrix on material particulars carries several lacunae such as contradictions, inconsistencies, exaggerations or embellishments leading to an inference that she was certainly not telling the truth. Statement of the prosecutrix thus creates a doubt in the mind of this Court and in these circumstances the accused/appellants are entitled for benefit of doubt. Thus, in view of the aforesaid discussion, this Court is of the considered opinion that the prosecution has not been able to prove its case beyond reasonable doubt and the Court below has fallen in serious error in basing its finding on the said evidence adduced by the prosecution. Accordingly, the appeals are allowed. Judgment impugned is set aside. They are acquitted of the charges levelled against them. The accused/appellants are on bail. Their bail bonds stand discharged.